TRADE-MARK FOR HAMMERS, HATCHETS, ETC. Mr. W. G. Doolittle for the applicant. MOORE, Commissioner: This is an appeal from the refusal of the Examiner of TradeMarks to register a mark consisting of the representation of a keystone with a diamond-shaped figure placed horizontally across the same and a scroll beneath the keystone, the words "Albion " appearing upon the diamond, "Bindley's Ever Satisfactory Tools " upon the keystone, and "Quality Counts" upon the scroll. Registration was refused in view of the registered trade-marks of H. Disston & Sons, No. 9,742, October 24, 1882, and No. 21,515, July 26, 1892. The essential feature of the mark claimed in registration No. 9,742 is the representation of a keystone and of that claimed in registration No. 21,575 is the representation of the keystone in connection with the words "Aluminum Steel." In each of these registrations the class of merchandise appears as saws, tools, and files. There appears to be no doubt but that the merchandise upon which the applicant's mark is used is of the same descriptive properties as that upon which the registrant's mark is used. It is, however, contended that the applicant's mark does not so nearly resemble that of the registrant as to cause confusion in the mind of the public or to deceive purchasers. It is to be observed that the date of use alleged by the applicant in his application for registration is "since July 20, 1907." The application for registration was filed August 26, 1907. The trade-mark of H. Disston & Sons was first registered nearly twenty-five years prior to this date, and it is difficult to see why the applicant should have included the representation of a keystone in his mark unless he believed that by so doing he could obtain the benefit of the reputation of the keystone mark which had so long identified the merchandise of H. Disston & Sons. The following statement of the Court of Appeals of the District of Columbia in the case of Wayne County Preserving Company v. The Burt Olney Canning Company, post, 318; 140 O. G., 1003; is believed to be applicable to the present case: It is strangely coincident that appellee, engaged in the same business as appellant and located in the adjoining county to where appellant has used his mark for many years, should select a mark so similar. The property-right in trademarks is a valuable one, and is entitled to protection from those who would profit by its imitation, and the courts should resolve the doubt, if any exists, in favor of the prior registrant and user in good faith. The fact that the applicant's mark comprises other matter than that used by the registrant is deemed to be immaterial, since the representation of a keystone would be likely to lead the purchaser to believe that the applicant's goods were those of the registrant, notwithstanding the accompanying matter. (The Peter Schoenhofen Brewing Company v. The Maltine Company, C. D., 1908, 387; 134 O. G., 1805; 30 App. D. C., 340; McLean v. Fleming, C. D., 1878, 262; 13 O. G., 913; 96 U. S., 345; Pillsbury et al. v. Pillsbury Flour Mills, 64 Fed. Rep., 841.) It may be stated that a further reason exists for the refusal of the registration of the trade-mark, under the decision of the Court of Appeals of the District of Columbia in the case of Johnson v. Brandau, post, 298; 139 O. G., 732, in which the Court said: The applicant deliberately selected and carefully designated the trade-mark having the descriptive word ("Asbestos ") printed in large letters across, and partly obscuring the figure of the ass. He thereby made it an actual and permanent feature of his trade-mark, claiming the same as an entirety. He made all essential, and, as we have seen, denied the Commissioner's right to determine that any one was the essential feature, and another accessory and subordinate. Under these conditions it was not for the Commissioner to say that the word "Asbestos' was an unessential feature, and to be regarded as mere surplusage. When an applicant describes and illustrates his trade-mark and applies for its registration as so described, the Commissioner must likewise consider it in its entirety. We are of the opinion that, in this case, he should have denied registration as claimed, giving the applicant, at the same time, an opportunity to amend by disclaiming and omitting the word objected to. * * The decision of the Examiner is affirmed. GOLDBERG V. CRUMPTON v. CARLIN. Decided March 16, 1909. 141 O. G., 286. INTERFERENCE-PRELIMINARY STATEMENT-AMENDMENT-NEWLY-DISCOVERED EVI DENCE-DILIGENCE. On a motion to amend a preliminary statement to change the date of disclosure and of the making of drawings from a date subsequent to a date prior to the dates alleged by the opposing party, where it appears that the drawings which are alleged to constitute newly-discovered evidence were examined prior to the making of the preliminary statement, an averment that the element shown therein and which is involved in interference was an obscure part of the machine and that the illustration thereof was therefore overlooked does not constitute a sufficient excuse for failure to earlier discover such evidence. APPEAL ON MOTION. REGISTER MECHANISM. Messrs. Cheever & Cox for Goldberg. Messrs. Brown & Williams for Crumpton. Messrs. Brown, Darby & Hopkins for Carlin. MOORE, Commissioner: This is an appeal by Carlin from the decision of the Examiner of Interferences denying his motion for leave to amend his preliminary statement. Appellant desires by an amended preliminary statement to change his alleged date of disclosure and of the making of drawings from a date subsequent to that alleged by his opponent, Crumpton, to a date prior thereto. The facts in the case are fully set forth in the decision of the Examiner of Interferences, and it is unnecessary to repeat them here. The showing comprises two affidavits of the appellant, Carlin, and alleges newly-discovered evidence as the basis for the motion. The drawing alleged to constitute the newly-discovered evidence and to bear the date of July 3, 1903, affiant states was introduced in evidence as an exhibit in another interference in August, 1906, and that- the particular element of the combination, i. e., the shiftable shield or index is a very small and obscure part of the machine, and its presence in the said drawing was not observed by the deponent when looking the drawings over for the purpose of making his former preliminary statement. Appellant further states in his affidavits that on January 15, 1909, while looking through his drawings for other information he accidentally discovered that the combination of features involved in the issue of the present interference is shown in said drawing. This was after appellant had become aware of the dates alleged in his opponent's preliminary statement and after he had become impressed with the desirability of establishing an earlier date. Although Carlin states that he made diligent search at the time he made his preliminary statement, there is no showing of facts upon which the Office can reach the conclusion that proper care and diligence were exercised. On the contrary, the showing rather indicates that if the drawing had been examined with reasonable care and diligence the alleged new matter would have been discovered. In a recent decision in the case of Curtis v. Hedlund (ante, 27; 139 O. G., 989) I stated: The showing by Curtis must, at least, make it clearly appear that the new matter relied upon could not have been discovered by the exercise of reasonable care and diligence at the time the original statement was prepared. Moreover, neither the drawing nor a copy thereof has been produced, and the Office is unable to determine from the showing accompanying the motion whether as a matter of fact the drawing discloses the issue of the interference, as alleged. The decision of the Examiner of Interferences is affirmed. EX PARTE HELLMUND. Decided February 23, 1909. 141 O. G., 565. 1. CLAIMS-SUGGESTION UNDER RULE 96-EXTENSION OF TIME. Where, in response to the suggestion of claims under Rule 96, the applicant shows that it is practically impossible for him to comply with the suggestion within the time specified and requests a reasonable extension thereof, such request should be granted. 2. REJECTION OF CLAIMS ON GROUND OF IMPLIED DISCLAIMER-APPEAL OR PETI TION. Where an applicant makes claims suggested under Rule 96 after the time set and the Examiner rejects them on the ground of implied disclaimer, ordinarily appeal from such rejection must be to the Examiners-in-Chief; but where the Examiner sets such a short period as to make it practically impossible for the applicant to file the claims in time and he refuses to extend such time the action will be reviewed by the Commissioner on petition. ON PETITION. AUTOMATIC CIRCUIT-BREAKER. Mr. Wesley G. Carr for the applicant. BILLINGS, Assistant Commissioner: This is a petition that the Examiner be instructed to withdraw the Jeffries patent, No. 863,185, as a reference and to declare an interference between said patent and petitioner's application. The record shows that on May 11, 1907, the Examiner forwarded a letter to applicant, who was acting as his own attorney, in which he suggested two claims from the application of Jeffries, under the provisions of Rule 96, for the purpose of an interference and gave him twenty days in which to make the same. On May 21, 1907, there was filed in the Office a letter reading as follows: Hon. COMMISSIONER OF PATENTS, Washington, D. C. NEW YORK, N. Y., May 16th, 1907. No. 241,253, filed Jan. 16, 1905, for automatic circuit-breakers. SIR: Your letter of the 11th, inst., addressed to Mr. Rudolph E. Hellmund, c/o Hellmund Collbohm Electric Co., 150 Nassau street, New York, N. Y., was received and in the absence of the addressee opened by the undersigned being authorized to do so. intends to be back in the first days of August. As he will not be able to attend to this case while abroad, I respectfully beg to allow applicant a later date to enable him to take up this matter after his return. His European address will be: Rudolph E. Hellmund, Gotha, Germany, Lucas Cranach str. 11. Respectfully yours, HELLMUND-COLLBOHM ELECTRIC COMPANY, In response thereto the Examiner on May 27, 1907, mailed to applicant's New York address a letter as follows: This is in response to the letter of May 21, 1907. The issuance of a patent to the other party of the possible interference cannot be delayed, and the applicant is required to make the claims suggested within the time specified. On September 4, 1907, applicant filed an amendment containing the suggested claims. These claims were rejected by the Examiner under the provisions of Rule 96 and upon the Jeffries patent, No. 863,185, which had in the meantime, on August 13, 1907, issued upon the Jeffries application. This rejection was made final on December 19, 1908, and the present petition was filed the following month. It appears from the facts as stated above that the Examiner was promptly notified by a member of applicant's firm and within the twenty days fixed by him that the applicant was on his way to Europe, and for this reason the letter requested that the time set for making the claims be extended. This letter also gave applicant's European address. Since applicant was prosecuting his own case, it was obviously necessary for him to be informed of the Examiner's action. The time fixed by the Examiner was clearly not sufficient for this to be done and for the applicant to file an amendment. Moreover, from the facts as stated it appears that it was a physical impossibility for applicant to file the amendment within the time specified, and it would seem that if there ever was a case in which the applicant was entitled to an extension of time this is such a case. Rule 96 provides that upon a proper showing the time for making the suggested claims may be extended. It is within the discretion of the Examiner to grant such extension if in his opinion the showing warrants it. (Ex parte Curtis, C. D., 1901, 147; 97 O. G., 189.) If the rejection was regarded as regular, it would be necessary for applicant to seek his remedy by appeal to the Examiners-in-Chief under the practice set forth in ex parte Swift (C. D., 1904, 365; 111 O. G., 2494) and ex parte Post, (C. D., 1904, 409; 112 O. G., 1214.) Under the facts shown to exist in the present case, however, the time fixed by the Examiner was too short. In the case of ex parte Schulze (C. D., 1905, 49; 114 O. G., 1550) under similar circumstances the matter was considered by the Commissioner on petition, and the final rejection on the ground of estoppel under Rule 96 was held to be premature and was set aside. The decision in that case contains the following statement: The question whether the Examiner was right in rejecting the claims under the provisions of Rule 96 would not be considered on this petition if the final rejection was regarded as regular. From the facts as they appear of record I am of the opinion that the Examiner should have granted the additional thirteen days' time requested by the attorney in which to file the amendment. The declaration of an interference necessitates delay, expense, and is, in fact, |